Practice Areas

When is an Incident Report not an "Incident Report"

By Jason A. Paskan

Recently, the Eighth District Court of Appeals issued a decision that discussed when an incident report is not an "incident report" for purposes of Ohio's Quality Assurance/Peer Review privilege as provided under R.C. 2305.25, et seq. See Ridenour v. Glenbeigh Hosp., 8 th Dist. No. 100550, 2014-Ohio-2063, 2014 WL 2048007.

Pursuant to R.C. 2305.25(D) an "Incident report or risk management report" is defined as "a report of an incident involving injury or potential injury to a patient as a result of patient care provided by health care providers, including both individuals who provide health care and entities that provide health care, that is prepared by or for the use of a peer review committee of a health care entity and is within the scope of the functions of that committee." Such reports are not discoverable and are inadmissible at trial pursuant to R.C. 2305.253.

"A health care entity asserting the R.C. 2305.252 privilege bears the burden of establishing the applicability of the privilege." Bansal v. Mt. Carmel Health Sys., Inc., 10 th Dist. No. 09AP-351, 2009-Ohio-6845, 2009 WL 5062122, ¶15, citing Lowrey v. Fairfield Med. Ctr., 5th Dist. No. 08 CA 85, 2009-Ohio-4470, 2009 WL 2718591, ¶ 35; Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333, 896 N.E.2d 769, ¶ 17. "Simply labeling a document 'peer review,' 'confidential,' or 'privileged' does not invoke the statutory privilege." Selby v. Fort Hamilton Hosp., 12th Dist. No. 2007-05-126, 2007-Ohio-2413, 2008 WL 2102412 ¶ 14. Rather, to attain the benefits of the peer review privilege, a health care entity must establish that the documents at issue satisfy the criteria of R.C. 2305.252 by: (1) submitting the documents in question to the trial court for an in camera inspection, or (2) presenting affidavit or deposition testimony containing the information necessary for the trial court to adjudge whether the privilege attaches. Bansal, supra.

The Tenth District in Bansal continued and outlined that the establishment of the privilege required at a minimum:

  • To prove the privilege, the health care entity must first establish the existence of a committee that meets the statutory definition of "peer review committee" contained in R.C. 2305.25(E). Second, the health care entity must establish that each of the documents that it refuses to produce in response to a discovery request is a "record [ ] within the scope of a peer review committee." The health care entity must provide evidence as to the specific documents requested, not generalities regarding the types of documents usually contained in a peer review committee's records.

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  • R.C. 2305.252 explicitly delineates one type of "record [ ] within the scope of a peer review committee" when it permits health care entities to refuse to answer discovery requests for "information, documents, and records otherwise available from original sources * * * produced or presented during proceedings of a peer review committee." Based upon this provision, we conclude that documents sought from a health care entity are peer review records if the health care entity proves that those documents were generated by an original source, and that they were produced or presented to the peer review committee.

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  • Additionally, in providing limited protection for records generated by an original source, R.C. 2305.252 implicitly extends full and unconditional protection to records generated by the "non-original source," i.e., the peer review committee. Thus, we conclude that documents sought from a health care entity are peer review records if the health care entity proves that those documents were created by and/or exclusively for a peer review committee.

Bansal, at ¶15-17, internal citations omitted.

In Ridenour, the Eighth District expanded upon the non-original source issue and held that where the incident report is to be forwarded to the human resources department for purposes of retaining the same on file, the statutory privilege does not apply notwithstanding the fact that the incident report is reviewed by the quality assurance committee. There was a policy in place at the hospital in Ridenour that required the creation of an incident report when necessary and that the an incident report was to be reviewed by a committee; however, under the hospital's policy, the original incident report was to be forwarded to human resources and the committee only reviewed a copy of the document. The Eighth District held that when an entity other than the peer review/quality assurance committee is responsible for maintaining the original incident report, the statutory privilege does not attach and the document is discoverable. Id. at ¶8. The Eighth District stated its position noting "[i]f the incident report had been prepared specifically for [the quality assurance committee] the director of human resources would not get the original report while the [quality assurance committee] received a copy of that report." Id. As the incident report was not an "incident report" that was prepared exclusively for peer review as required under statute, the incident report was not privileged and was discoverable. Id. at ¶9.

Accordingly, policies and procedures regarding the review and use of incident reports should be amended to ensure that the same are privileged and inadmissible pursuant to R.C. 2305.253. If you would like assistance in making such changes, please do not hesitate to contact BSPH.